Between Insolvency and Crisis: Conditions for the Opening of Restructuring and Insolvency Proceedings and Directors’ Duties

In this chapter, we are going to focus on several interpretative difficulties stemming from the nebulous meaning of Articles 36 and 37 of the Draft Directive harmonising certain aspects of insolvency law (COM(2022) 702 final – hereinafter: the “Proposal” or the “Proposed Directive”) which deal with the duty of the directors of a legal entity to file for an insolvency proceeding in a timely manner and the related civil liability for the breach of this duty. Our opinion is that these rules will fall short of even the minimum harmonisation goals of the Proposal because of their vagueness and the fact that they still need a great deal of clarification before they can contribute effectively to the development of the emerging European bankruptcy law.